NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0092n.06
Case No. 16-5798
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. MICHAEL MUDD, Defendant-Appellant. ____________________________________/ ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY

Before: MERRITT, MOORE, a nd STRANCH, Circuit Judges. MERRITT, Circuit Judge. Defendant Michael Mudd was sentenced to 360 months in prison after pleading guilty to two counts of producing child pornography in violation of 18 U.S.C. §§ 2251(a) and (e). Mudd now appeals his sentence, claiming that the district court improperly calculated his sentencing range under th e Sentencing Guidelines and that his sentence was “greater than necessary” to punish the conduct at issue. Because none of his claims warrant relief on appeal, we AFFIRM the judgment of the district court. I. Background As part of an investigation into a website that facilitated the exchange of child pornography, federal authorities identified Mudd as a user of the website. Based on thatCase No. 16-5798 , United States v. Mudd

- 2 - information, law enforcement obtained and execut ed a warrant to sear ch Mudd’s home where they seized various pieces of computer equipment. Within twenty-four hours of the search of Mudd’s home, an individual informed law enforcement that her twelve-year-old son had to ld her that Mudd had previously recorded him engaged in sexually explicit conduct. 1 In a forensic interview, the boy confirmed that Mudd had photographed and taken video of him while he was engaged in sexually explicit conduct on multiple occasions between the fall of 2013 and the summer of 2014. According to the boy, Mudd would show him pornographic photographs and videos of othe r boys and then ask him to mimic their poses while Mudd took phot ographs and video on his iPad. On the basis of the information gained from th e search and the forensic interview, a grand jury issued a fifteen-count indictment charging Mudd with thirteen count s of receipt of child pornography in violation of 18 U.S.C § 2252A(a)(2 ) and (b)(1), and two counts of production of child pornography in violation of 18 U.S.C. § 2251(a) and (e). Following negotia tions with the United States, Mudd entered an open guilty plea to the two production counts. After Mudd was sentenced on the production counts, the thirteen remaining receipt counts in the indictment were dismissed upon the Government’s motion. At the sentencing hearing, the di strict court calculated Mudd’s total offense level to be
42. That offense level included a two-point enhancem ent because of the district court’s finding that the offense involved “distribution” under U.S.S.G. § 2G2.1(b)(3). Although Mudd’s past criminal history yielded a result of Category III u nder the Guidelines, the parties agreed that the result “overstated” his criminal history. Out of recognition of that fact, th e district court reduced his criminal history to Category II. On the basi s of a total offense level of 42 and a Category II

1 Forensic analysis of the seized materials would later reveal several images of th e twelve-year-old victim in sexually explicit poses while naked.Case No. 16-5798 , United States v. Mudd

- 3 - criminal history, the district court calculated the sentencing range under the Guidelines to be 360 months to life. Each of Mudd’s two convic tions carried a statutor y minimum sentence of 15 years and a statutory maximum of 30 years. 18 U.S.C. § 2251(e). Mudd’s arguments at the sentenci ng hearing underscored the tr agic circumstances of this case. In support of his request for a senten ce of fifteen years in prison—the statutory minimum—Mudd’s attorney directed the court’s atte ntion to several mitigati ng facts: First, he noted that Mudd himself had been sexually abused by a priest as a child and had suffered severe emotional trauma as a result. Next, he em phasized that Mudd di d not “revel[] in his predilections,” but rather consistently sought c ounseling and treatment. Finally, he reminded the court of the remorse that Mudd expressed in an earlier letter to the court. Despite Mudd’s arguments for mercy, the district court ordere d a sentence of 360 months on each count to be served concurrently. This appeal followed. II. Standard of Review Generally, our review of the district court’s sentencing decision is limited to reasonableness review under a deferent ial abuse-of-discretion standard. United States v. Bazazpour , 690 F.3d 796, 803 (6th Cir. 2012). We asse ss the reasonableness of sentences both procedurally and substantively. See United States v. Erpenbeck , 532 F.3d 423, 430 (6th Cir. 2008). A sentence is procedurally unreasonable if the district court “fail[s] to calculate (or improperly calculate[es]) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to consider the [18 U.S.C.] § 3553(a) factors, select[s] a sentence ba sed on clearly erroneous facts, or fail[s] to adequately explai n the chosen sentence—including an explanation for any deviation from the Guidelines range

. ” Gall v. United States , 552 U.S. 38, 51 (2007). SubstantiveCase No. 16-5798 , United States v. Mudd

- 4 - reasonableness requires the sentence imposed by th e district court to be reasonable based upon the totality of the circumstances. Id. III. Distribution Senten cing Enhancement Claim Mudd’s first claim on appeal is that the dist rict court erroneously found that his offense involved “distribution” of child pornography under U.S.S.G. § 2G2.1(b)(3). Because Mudd’s act of showing the twelve-year-old boy various items of ch ild pornography falls within the definition of “distribution” under § 2G2.1( b)(3), we affirm the district court’s application of the enhancement. Section 2G2.1 is the relevant sentencing guideline for an indi vidual convicted of producing child pornography in viol ation of 18 U.S.C. § 2251(a). See U.S.S.G. App. A. Specifically, § 2G2.1 provides for a two-level enhancement “[i]f the defendant knowingly engaged in distribution.” U.S. S.G. § 2G2.1(b)(3). The applic ation notes appended to the guideline define “distribution” as “any act, including possession with intent to distribute, production, transmission, advertisement, and transpor tation, related to the transfer of material involving the sexual exploitati on of a minor.” U.S.S.G. § 2G2.1, Application Note 1. The district court found that Mudd’s act of showing the boy vari ous pieces of child pornography so that he coul d replicate the poses in M udd’s photographs constituted “distribution” within the meaning of U.S.S.G. § 2G2.1(b)(3) since the pornography “was used to groom [the] child” to pose for sexuall y explicit photographs and videos. Mudd contends that the district court’s application of the distribution enhancement was e rroneous for two reasons: first, because the enhancement is only applicable when a defendant distributes the child pornographyCase No. 16-5798 , United States v. Mudd

- 5 - that they produced themselves; second, because the preponderance of evidence did not show that Mudd ever showed pornographic materials to the child. 2 We address both arguments in turn. Mudd’s first argument against application of the distribution enhancement is that the enhancement should be cabined to cases in which the defendant distributes the child pornography that they themselves produced (as opposed to cases like th is one in which the defendant merely distributes ch ild pornography produced by a thir d party as a step toward the relevant production). As the district court not ed, the authorities on th is question are mixed. Mudd alleges that the Sentencing Commission unofficially opined to the probation officer in this case that the narrower interpretation was co rrect because § 2G2.1 offenses—unlike § 2G2.2 offenses (trafficking child pornography)—are not subject to “expanded relevant conduct” analysis provided for in U.S.S.G. § 1B1.3(a)(2). On the other hand, the Government relies upon the plain text of §2G2.1(b)(3), the accompanyi ng explanatory notes, and the existing case law interpreting the distribution enhancement—all of wh ich seem to favor the broader interpretation. The Sentencing Commission’s support for its in terpretation that the distribution of child pornography made by a third part y cannot provide a basis for th e distribution enhancement under § 2G2.1 is not apparent from the face of the relevant Guidelines. While § 1B1.3(a)(2) does permit consideration of acts and om issions that were part of the “same course of conduct” or a common scheme or plan as the offense of convic tion in § 2G2.2 (trafficking) cases, that fact does not preclude the sentencing court from consider ing “acts . . . committed . . . by the defendant” directly in furtherance of the offense of production. See U.S.S.G. § 1B1.3(a)(1). Rather, § 1B1.3(a)(2)’s “expanded relevant conduct” analys is exists to permit courts to consider a

2 Mudd also contends that the distri ct court’s ruling was erroneous because the cases cited by the Government as support for applying the enhancement were distinguishable from Mudd’s case. While that may be true, that fact alone does not provide an independent basis for the conclusion that the district court’s interpretation of § 2G2.1 was error.Case No. 16-5798 , United States v. Mudd

- 6 - broader cross-section of conduct when two o ffenses must be “grouped” under U.S.S.G. § 3D1.2(d). See U.S.S.G. § 1B1.3, Application Note 5( A). When the relevant acts were committed directly in furtherance of the convicted offense, “expanded relevant conduct” analysis is not necessary to allow the court to c onsider the act as a part of sentencing. See U.S.S.G. § 1B1.3(a)(1). The text of § 2G2.1, the app lication notes accompanying it, and the case law interpreting it all weigh in favor of its applicability in cases where the defendant shows a victim child pornography produced by a third pa rty in order to “g room” the child fo r a contemplated production. The meaning of “distribution” in common parlance w ould certainly include purposeful sharing with another. See Distribution , Black’s Law Dictionary (10th ed. 2014) (“The act or process of . . . giving out.”). Further, the definition of “distribution” under § 2G2.1 is capacious, including “any act . . . related to the transfer of material involving the sexual exploitation of a minor.” U.S. S.G., Application Note 1. The Application Note refers to “material involving sexual exploi tation of a minor” generally; it does not make any attempt to limit the definition of that phrase to materials produced by the defendant. Id. Moreover, federal courts reviewing the distribution enhancement have adopted a broad interpretation of its applicability. See United States v. Broxmeyer , 699 F.3d 265, 282 (2d Cir. 2012) (distribution of images produced by the defendant after completion of the production offense sufficient to justify distribution enhancement because the court coul d legitimately consider “not only the specific conduct satisfying the elements of the crime of c onviction, but all conduct ‘relevant’ to the crime as detailed in § 1B1.3”). Here, Mudd showed the victim “photographs of other boys in specific poses in order to have [the victim] recreate the same poses.” As the district court noted, this act was committed inCase No. 16-5798 , United States v. Mudd

- 7 - order to “groom” the victim for the eventual pr oduction of child pornography. Since the acts of distribution committed by the defenda nt were in direct furtheran ce of—and, therefore, relevant to—the crime of production, the di strict court’s application of the distribution enhancement was
proper. Mudd’s second argument is that—regardl ess of the scope of the distribution enhancement’s applicability—the district court erred by applying it in his case because there was insufficient evidence that Mudd ha d showed the victim child por nography in the first place. Because the fact of distribution does not affect the statutorily authorized maximum penalty for the underlying crime of production, the Government was only required to prove it to the judge by a preponderance of the evidence. See United States v. Jones , 829 F.3d 476, 477 (6th Cir. 2016). Contrary to Mudd’s arguments, the available evidence clearly in dicated that Mudd had shared various items of child pornography with the victim as a tool to demonstrate which poses the child should imitate in the material Mudd sought to produce himself. The Probation Officer’s draft Presentence Investigation Report contained an en tire paragraph specifying that Mudd would use other pieces of child pornography to sh ow the victims how they should pose. After acknowledging that Mudd had received the Report, hi s attorney stated: “We find no errors.” In addition to Mudd’s apparent stipula tion to the fact that he had s hown the victim va rious items of child pornography, a Postal Inspecto r also testified via affidavit th at many of victim’s poses in the seized materials were similar to poses found in the child po rnography that Mudd had previously ordered online. Since Mudd never object ed to the veracity of any of this evidence and offered no proof to the contrary, the distri ct court’s conclusion that Mudd had shown his victims child pornography was supported by at least a preponderan ce of the evidence.Case No. 16-5798 , United States v. Mudd

- 8 - For the reasons stated above, we hold that the distri ct court did not abus e its discretion by applying the distribution enhancement when calculating Mudd’s sentencing range. IV. Criminal History Do wnward Departure Claim Mudd’s second claim on appeal is that the district court abus ed its discretion by lowering his criminal history from a properly calculated Category III to a Category II when the parties agreed that Mudd’s criminal history was oversta ted and that a Category I classification was appropriate. We reject this claim because the di strict court was aware of its discretion to lower Mudd’s criminal history to a Category I. The Sentencing Guidelines provide that th e district court may reduce a defendant’s criminal history category “[i]f reliable information indicates that the defenda nt’s criminal history category substantially over-represe nts the seriousness of the defe ndant’s criminal history.” U.S.S.G. § 4A1.3(b)(1). By its own terms and in light of our preced ents construing that language, it is clear that this provi sion vests the district court with discretion to fa shion relief—as opposed to an obligation to take specific actions —when a defendant’s criminal history category is over-represented. See, e.g. , United States v. Johnson , 553 F.3d 990, 998–99 (6th Cir. 2009). This court generally refuses to disturb a dist rict court’s decision de nying a discretionary downward departure “unless the record shows that the district court was unaware of, or did not understand, its discretion to make such a departure.” Id. at 999. Here, the part ies agreed that the Category III result under the Guidelines calculati ons overstated Mudd’s criminal history, which consisted of two convictions for fa iling to maintain insurance on his ve hicle. In light of that fact, Mudd requested that the court gran t a downward departure to Categor y I. And while the district court agreed that the Category I II classification overstated Mudd’ s history, the court decided to depart down to Category II instead of Category I. While not the result th at Mudd preferred, theCase No. 16-5798 , United States v. Mudd

- 9 - fact that the trial judge granted a departure to Category II provides clear proof that he understood his discretion to grant Mudd’s mo tion in its entirety. Accordingl y, we refuse to disturb the district court’s decision on that point. V. Substantive Unreasonableness Claim Mudd’s final claim is that the district c ourt’s sentence of 360 m onths imprisonment is substantively unreasonable. Mudd does not claim on appeal that the district court failed to consider the mandatory sentencing factors en umerated at 18 U.S.C. § 3553(a). Rather, he contends that the district court gave undue weight to “the need fo r the sentence imposed . . . to protect the public from further crimes of th e defendant,” 18 U.S.C. § 3553(a)(2)(c), at the expense of a thoughtful consideration of Mudd’s personal history and ch aracter traits. The essence of his claim appears to be that the sentence imposed—360 months in jail—was “greater than necessary” to ensure th e purposes of sentencing were achieved. 18 U.S.C. § 3553(a). While this court might have weighed the factors differently in the first instance, we uphold the district court’s sentence since it did not amount to an abuse of discretion. A sentence is substantively unreasonable when—among other pos sible defaults—the district court “gives an unreasonable amount of we ight to any pertinent [s entencing] factor.” United States v. Fields , 763 F.3d 443, 455 (6th Cir. 2014). Mindful of our institutional limitations as a reviewing court, we exercise “a great deal of deference” when reviewing a defendant’s sentence for s ubstantive reasonableness. Id. To that end, we presume sentences falling within the Guidelines range to be substantively reasonable. Id. Here, the statutory minimum sentence was 180 months and the st atutory maximum was 360 months. 18 U.S.C. § 2251(e). The district court calculated the Guidelines range to be 360 months to life. Because the di strict court’s sentence was at the lowest e nd of the GuidelinesCase No. 16-5798 , United States v. Mudd

- 10 - range, we presume that it is substantively reasonable. Fields , 763 F.3d at 455. That presumption notwithstanding, Mudd maintain s on appeal that a 360-month sentence is substantively unreasonable because it is “greater than necessary” in light of his history of sexual abuse, the remorse that he has shown, and his repeated at tempts to seek counseling and treatment. When the district court rejects a defendant ’s nonfrivolous arguments that the § 3553 factors weigh against a sentence in the Guidelines range, “the record must reflect both that the district judge considered the de fendant’s argument and that th e judge explained the basis for rejecting it.” United States v. Taylor , 800 F.3d 701, 714 (6th Cir. 2015). The record in this case leaves no room to debate that th e district judge gave thoughtful consideration to the defendant’s arguments and made great efforts to explain his reasons for rejecting them . The district judge made clear that it understood Mudd’s argument, stating: It's a sad case, sad all around. Mr. Mudd ha s a personal history that's tragic. We all know it. He was abused himself by a person in power, almost the ultimate power, and who himself, the punisher, rea lly avoided punishment in this case. And then he has had a predilection th at has called upon his worst demons, as [defense counsel] indicated. I'm sure in his good moment s, as we've heard him speak here, he grieves over what he's done, he wishes it hadn't happe ned, he wishes he hadn't had those thoughts, and he wishes he hadn't been ca ught. Unfortunately, he has a history of relapse and succumbing to his predilection. However, the trial judge also made clear his appreh ension about the extent to which Mudd’s history of relapse and failed treatment might endanger additional children in the future: As I said before, he's made some good faith efforts to deal w ith his predilection. He's tried and I'm sure thought from time to time he was through with it. But he kept coming back. It kind of escalated rea lly to the end of it. And he has not been able to do that. The Court is very concerne d that if the defendant di d not receive a significant penalty that he would be a danger to the community, a danger to minors because of his predilection, because he's proven by history that he hasn't been able toCase No. 16-5798 , United States v. Mudd

- 11 - overcome it despite his good faith efforts to do so. I think that's very strong in my mind in this case. The district judge clearly understood Mudd’s argument for a lower sentence on the basis of his personal history and charac teristics, but he reasonably beli eved that the risk associated with Mudd’s apparent inability to overcome hi s addiction outweighed those considerations. Since the district judge provide d a sufficient explanation for rejecting Mudd’s request for a below-Guidelines sentence of 180 months, Mudd ha s not provided evidence sufficient to rebut our presumption that his within-G uidelines sentence was reasonable. For the reasons stated above, the ju dgment of the district court is AFFIRMED

.Case No. 16-5798 , United States v. Mudd

- 12 - MERRITT, Circuit Judge, concurring. Independently of my colleagues, I would observe that the district judge made a highly pessimistic predicti on about the likely effect of Mudd’s participation in the Sex Offender Treat ment Programs made available to federal prisoners by the Bureau of Prisons. See 18 U.S.C. § 3621(f)(1)(B); see also U.S. Sentencing Comm’n, 2012 Report to Congress: Federal Child Pornography Offenses, at 282–84 (2013). The parties and the district court all agreed that thes e programs were some of the best available, but the court still opted for the statutory maximum sent ence in order to minimize the risk of harm to additional children after Mudd is rel eased. Implicit in this line of reasoning is skepticism of the efficacy of the cognitive-behavioral therapy made available by the Bureau of Prisons. But that skepticism is contradicted by the weight of scientific literature. See, e.g. , Roger Przybylski, The Effectiveness of Treatment for Adult Sexual Offenders (2015), http://www.smart.gov/pdfs/ TheEffectivenessofTreatmentforAdultSexual Offende rs.pdf (“[T]he evidence suggests that that treatment for sex offenders—particularly cogniti ve-behavioral/relapse-prevention approaches— can produce reductions in both se xual and nonsexual recidivism.” ). Regrettably, our current sentencing regime requires the dist rict judge to make a prediction thirty years into the future about the potential efficacy of the Sex Offender Treatment Programs in each defendant’s case. A better system would permit the sentencing judge to order a lower sentence contingent upon a report from the Bureau of Prisons that the defendant had been successfully rehabilitated while in custody. At present, the statutory and admini strative laws regarding child pornography do not grant such authority to sentencing courts, and we have no argument before us that the Eighth Amendment may require the courts to recognize a nd create a system base d on the possibility of rehabilitation.